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Goldman v. Bayer AG

United States District Court, N.D. California

July 26, 2017

BAYER AG, et al., Defendants.


          PHYLLIS J. HAMILTON United States District Judge.

         The motion of defendants Bayer AG, Bayer Corporation, and Bayer Healthcare LLC (“Bayer”) to dismiss the complaint in the above-entitled action for failure to state a claim came on for hearing before this court on July 12, 2017. Plaintiff Daniel Goldman appeared by his counsel Matthew Guiney, and defendants appeared by their counsel Joshua Fougere. Having read the parties' papers and carefully considered their arguments and the relevant legal authority, the court hereby GRANTS the motion.


         Bayer Healthcare LLC, a Delaware limited liability company that is wholly owned by Bayer Corporation, an Indiana corporation, which in turn is owned by Bayer AG, markets and sells multivitamins under the trademarked brand name "One A Day®." Cplt ¶¶ 13-15. Among the varieties of One A Day® vitamins are "gummy" (or edible) multivitamins sold under the name "One A Day® VitaCraves®." Cplt ¶¶ 20-21. These products include “adult” and “teen” multivitamin formulations. Cplt ¶ 22. Among these are “adult” formulations for "energy support, " "immunity support, " and "healthy metabolism support;" “adult” formulations for men and women; and “teen” formulations for “him” and “her.” See Cplt ¶ 22 and Exhs. A-J. Bayer Healthcare LLC owns the trademarks for One A Day® and VitaCraves® multivitamins. Cplt ¶ 15. While the daily dose (or "serving") of some One A Day® vitamins is one pill or capsule per day, the container for the One A Day® VitaCraves® indicates that the daily dose (or "serving") for those vitamins is two "gummies" a day. Cplt ¶ 7.

         Plaintiff, a resident of Oakland, California, filed the complaint on February 8, 2017. The gist of the complaint is that Bayer has "affirmatively represented" on the "front" portion of the label on the container of One A Day® VitaCraves® that the bottle contains a specific number of days' worth of multivitamins (70 is the number at issue in the complaint), but that because the specified serving size is two "gummies, " the bottle actually contains vitamins sufficient for only half the number of days (35) as there are “gummies” in the bottle. See Cplt ¶¶ 3-7.

         Plaintiff alleges that on December 1, 2016, he purchased One A Day® VitaCraves® from "one or more retailers in New York, including CVS[;]" that 18 days later, on December 19, 2016, he purchased One A Day® VitaCraves® from "one or more retailers in California, including CVS[;]" and that he relied on the statement on the “front” portion of the label on each container that the bottle contained "70 Gummies, " which he interpreted to mean 70 days' worth of vitamins because the product brand name is "One A Day®." Cplt ¶¶ 11-12. Plaintiff alleges that the representation on the "front" portion of the label is “illegal and deceptive." Cplt ¶ 8.

         The court takes judicial notice of the following. The One A Day® VitaCraves® container is round; the label wraps around the container, with approximately one-half inch of space between the beginning of the label and the end; because the container is round, only a portion of the label is visible and readable at any given time; and the label provides information about the multivitamins inside the container.

         Plaintiff asserts that the label is "deceptive" because a reasonable consumer looking at the "front" portion of the label - the part facing outward when the product is sitting on the store shelf (assuming the store clerk positioned it with the brand name facing exactly outward), or what plaintiff refers to as “the principal display panel, ” Cplt ¶ 40 - will not see the remaining portion of the label that is affixed to the round container. Plaintiff alleges that a reasonable consumer looking at the “front” portion of the label will conclude from the brand name (“One A Day®”) and the notation “70 Gummies” that the bottle contains 70 days' worth of multivitamins. Cplt ¶ 6.

         Plaintiff claims that he was "injured" because the recommended serving is two “gummies” a day, and the bottles therefore actually contain only 35 days' worth of vitamins, not 70 days' worth as he thought when he purchased them. Cplt ¶¶ 42-43. He alleges that he and other consumers purchasing this line of multivitamins have actually paid "precisely twice as much for the product in reliance on the misrepresentation about the quantity of the product being purchased." Cplt ¶ 40.

         Plaintiff asserts five causes of action: (1) violation of California's Consumer Legal Remedies Act, Cal. Civ. Code § 1750, et seq. ("CLRA") (on behalf of a proposed California class); (2) unlawful/unfair/fraudulent business acts and practices, in violation of California Business & Professions Code § 17200 ("UCL") (on behalf of a proposed California class); (3) violation of New York's Deceptive Acts or Practices Law, N.Y. Gen. Bus. Law ("NYGBL") § 349 (on behalf of a proposed New York class); (4) an "alternative" claim of unjust enrichment (on behalf of a proposed "national" class); and (5) an "alternative claim" of breach of express warranty under California common law (on behalf of a proposed California class). Bayer now seeks an order dismissing the complaint for failure to state a claim.


         A. Legal Standard

         A motion to dismiss under Rule 12(b)(6) tests for the legal sufficiency of the claims alleged in the complaint. Ileto v. Glock, 349 F.3d 1191, 1199-1200 (9th Cir. 2003). Under the minimal notice pleading requirements of Federal Rule of Civil Procedure 8, which requires that a complaint include a "short and plain statement of the claim showing that the pleader is entitled to relief, " Fed.R.Civ.P. 8(a)(2), a complaint may be dismissed under Rule 12(b)(6) if the plaintiff fails to state a cognizable legal theory, or has not alleged sufficient facts to support a cognizable legal theory. Somers v. Apple, Inc., 729 F.3d 953, 959 (9th Cir. 2013).

         While the court must accept as true all the factual allegations in the complaint, legally conclusory statements, not supported by actual factual allegations, need not be accepted. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). The complaint must proffer sufficient facts to state a claim for relief that is plausible on its face. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 558-59 (2007) (citations and quotations omitted). A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678 (citation omitted). Determining whether a complaint states a plausible claim for relief is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679. "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not 'show[n]' - 'that the pleader is entitled to relief.'" Id. Where dismissal is warranted, it is generally without prejudice, unless it is clear the complaint cannot be saved by any amendment. Sparling v. Daou, 411 F.3d 1006, 1013 (9th Cir. 2005).

         Review is generally limited to the contents of the complaint, although the court can also consider a document on which the complaint relies if the document is central to the claims asserted in the complaint, and no party questions the authenticity of the document. See Sanders v. Brown, 504 F.3d 903, 910 (9th Cir. 2007). That is, the court may consider matters that are properly the subject of judicial notice, Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005); Lee v. City of L.A., 250 F.3d 668, 688-89 (9th Cir. 2001), and may also consider exhibits attached to the complaint, see Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1555 n.19 (9th Cir. 1989), and documents referenced extensively in the complaint and documents that form the basis of a the plaintiff's claims. See No. 84 Emp'r-Teamster Jt. Counsel Pension Trust Fund v. Am. W. Holding Corp., 320 F.3d 920, 925 n.2 (9th Cir. 2003).

         B. Defendants' Motion

         As an initial matter, Bayer notes that two courts (the U.S. District Court for the Eastern District of Arkansas, and a California state court) have dismissed cases with identical factual allegations regarding this very same One A Day® VitaCraves® multivitamin product. These cases are Howard v. Bayer Corp., Case No. C-10-1662 DPM (E.D. Ark. July 22, 2011), appeal dismissed pursuant to stipulation (2011); and Brady v. Bayer AG, Case No. 30-2016-000839608 CU (Orange Co. Sup. Ct. July 12, 2016), appeal pending). Both those courts found that no reasonable consumer would be misled by labeling that explicitly tells consumers what they need to know about a product.

         In response, plaintiff asserts that Howard and Brady were "incorrectly decided" under the law of the Ninth Circuit - specifically, Williams v. Gerber Prods. Co., 552 F.3d 394 (9th Cir. 2008) - because they in essence require a "reasonable consumer" to look on the side of the label for information ...

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